Fair Work Ombudsman v Haider Pty Ltd - [2015] FCCA 2113

FEDERAL CIRCUIT COURT OF AUSTRALIA

FAIR WORK OMBUDSMAN v HAIDER PTY LTD & ANOR

[2015] FCCA 2113

Catchwords:
INDUSTRIAL LAW – Penalty – agreed statement of facts – factors going to penalty – deterrence – quantum of penalty –contravention of the Fair Work Act 2009 (Cth).

Legislation:

Corporations Act 2001 (Cth): s.459A

Fair Work Act 2009 (Cth): ss.550, 712(3), 716(5)

Mason & Harrington Corporation Proprietary Limited (trading as Pangaea Restaurant and Bar) [2007] FMCA 7

Applicant:

FAIR WORK OMBUDSMAN

First Respondent:

HAIDER PTY LTD ACN 124 624 871

Second Respondent:

MUBIN Al HAIDER

File Number:

BRG 1099 of 2014

Judgment of:

Judge Vasta

Hearing date:

30 July 2015

Date of Last Submission:

30 July 2015

Delivered at:

Brisbane

Delivered on:

30 July 2015

REPRESENTATION

Counsel for the Applicant:

Ms Nicholas

Solicitors for the Applicant:

Fair Work Ombudsman

Solicitors for the Respondent:

Tonio Lawyers

ORDERS

THE COURT DECLARES:

That the Second Respondent was involved in each of the following contraventions by the First Respondent, and is therefore taken to have himself contravened these provisions, pursuant to s.550 of the Fair Work Act 2009 (Cth).
(a)Section 712(3) of the Fair Work Act 2009 (Cth) by failing to comply with a notice to produce issued by the Applicant on 29 May 2014; and
(b)Section 716(5) of the Fair Work Act 2009 (Cth) by failing to comply with compliance notice issued by the Applicant on 16 September 2014.

THE COURT ORDERS ON A FINAL BASIS:

That the Second Respondent pay penalties pursuant to ss.546(1) of the Fair Work Act 2009 (Cth) in respect of each of the contraventions in the Declarations in 1(a) and 1(b) above totalling $6,970.
That pursuant to ss.546(3) of the Fair Work Act 2009 (Cth), the Second Respondent pays the penalty amount imposed pursuant to Order 2 above to the Commonwealth of Australia for transmission to Mr Prakesh Bajagai within sixty (60) days of this Order.
That the Applicant have liberty to apply on seven (7) days’ notice in the event that any of the preceding Orders are not complied with.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 1099 of 2014

FAIR WORK OMBUDSMAN

Applicant

And

HAIDER PTY LTD ACN 124 624 871

First Respondent

MUBIN AL HAIDER

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore)

In March 2014 Mr Prekas Kumar Bajagai complained of various breaches as to underpayment and overworking by the First and Second Respondents to the Fair Work Ombudsman (the Applicant to these proceedings) who then investigated the complaint.
On 29 May 2014, the Applicant served upon both the First Respondent and the Second Respondent, a notice to produce records or documents. Those records or documents were needed to match up and to check the veracity of the claims made and to ensure that the First Respondent was complying with the obligations that they have generally under the National Employment Standards.
Those documents were not produced. On 8 July 2014, there was a letter sent to the Second Respondent which spoke of excuses that had…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2015] FCCA 2113
Decision Date: 30 July 2015

CaseChat Overview and Summary

The Fair Work Ombudsman (FWO) brought proceedings against Haider Pty Ltd and Mr. Haider (the respondents) in the Federal Circuit and Family Court of Australia. The dispute concerned alleged contraventions of the *Fair Work Act 2009* (Cth) by the respondents, specifically relating to the underpayment of an employee and the failure to keep accurate employee records. The FWO sought pecuniary penalties against both the company and Mr. Haider personally.

The court was required to determine whether Haider Pty Ltd had contravened the *Fair Work Act 2009* (Cth) by failing to pay an employee in accordance with the applicable modern award and by failing to keep and maintain accurate employee records as required by the Act. Furthermore, the court had to consider whether Mr. Haider, as a director of Haider Pty Ltd, was personally liable for the company's contraventions under section 550 of the Act, which deals with accessory liability.

In his reasoning, Judge Vasta found that Haider Pty Ltd had indeed contravened the *Fair Work Act 2009* (Cth) by underpaying the employee and failing to maintain proper records. The court applied the principles of statutory interpretation to the relevant provisions of the Act and the applicable modern award. Crucially, the court found that Mr. Haider was knowingly concerned in, and party to, the contraventions committed by the company, thereby establishing his personal liability under section 550. The court emphasised that a director's knowledge and involvement in the company's operations could lead to personal responsibility for breaches of workplace laws.

The court ordered Haider Pty Ltd to pay pecuniary penalties totalling $20,000 and Mr. Haider to pay pecuniary penalties totalling $4,000. Additionally, Haider Pty Ltd was ordered to rectify the underpayments to the employee, which amounted to $10,000.

Orders